Summary
Where a decision underlying the judgment has a statutory ground, it is not excluded from the grounds for retrial solely because an independent means of challenge exists.
5.1The Standard by Which the Path Opens
The commencement of the retrial period and the statutory grounds for exclusion must be considered together. If one looks only at the final judgment, the defect that supported its conclusion may not be visible. In such a scene, if the trial on which the final judgment was based was also defective, the question remains whether the now-final and conclusive judgment may be reopened and contested. Even though the error of the preceding trial may have seeped into the conclusion of the final judgment, in a procedure aimed solely at the final and conclusive judgment that error may not appear directly. It is therefore necessary to determine through what route a defect arising in the stage supporting the final judgment may be contested.
As to this question, Article 452 of the Civil Procedure Act provides: "Where a ground provided in Article 451 exists in a trial on which the judgment is based, that ground may be taken as a reason for retrial even if there is an independent method of appeal against that trial." Here, "a trial on which the judgment is based" refers to the preceding trial on which the determination of the final judgment was founded, and "a ground provided in Article 451" means the statutory grounds enumerated as reasons for retrial. This text says that the mere fact that an independent method of appeal against the underlying trial itself lies separately open does not preclude that ground from being raised in retrial.
What the provision states is a sentence saying that exclusion is not permitted; it is not a declaration that the entrance to retrial opens automatically. If a statutory ground exists in the trial on which the judgment is based, the existence of an independent method of appeal alone does not exclude it from the grounds for retrial, but the assessment whether that ground is actually in a state to serve as a reason for retrial continues at a separate stage. At this point, the ground concerning the underlying trial must be distinguished from the stage of carrying it into retrial against the final and conclusive judgment. If the former asks whether the statutory ground applies, the latter examines, taking together the preceding finality requirements and the time limit or its exceptions, whether a path exists through which the claim may be brought.
Nevertheless, if the inquiry is broadened to the underlying trial, the dispute becomes complicated. Insofar as the preceding trial is taken up again, its procedural history and the grounds of its determination must also be examined together, and the inconvenience remains that a complex attack is placed together within the single procedure of retrial against a final and conclusive judgment. The concern that a remedial gap remains for grave misjudgments outside the enumerated grounds is also superimposed here. Still, the grounds for retrial of the underlying trial cannot be excluded merely because an independent method of appeal exists. The entrance to the statutory grounds cannot be closed merely because matters become complicated, and how to handle misjudgments not enumerated remains a separate question as well.
In this scene, Plaintiff A obtained a new document after the final and conclusive judgment, but cannot yet explain which ground for civil retrial that document falls under. The final and conclusive judgment is the preceding material serving as the standard for the retrial procedure, and the new document is merely a clue for gauging the occurrence of the ground and whether it was learned of; the application of a statutory ground is not yet apparent. Whether the relief demanded, the parties, and the conditions are specified in the prayer for judgment, and whether the right concerning the chosen action can be kept free from interference, also remain undecided. From this scene alone, the preceding finality requirements or the exceptions to the time limit cannot be asserted, and whether the merits of the result of the original judgment may be reexamined has not been confirmed either.
What this section permits is the determination that, where a ground provided in Article 451 exists in a trial on which the judgment is based, the mere existence of an independent method of appeal does not bar that ground from serving as a reason for retrial. What is not permitted is to assert at once, solely because grounds appear in the underlying trial, that the entrance to retrial is open, or to fix the determination that the final and conclusive judgment will necessarily be overturned. Even if grounds for retrial exist, if the result of the original judgment is recognized as just, it is changed to a dismissal of the claim rather than a granting of the retrial.
5.2The Conditions That Block Relief
The preceding stage of analysis confirmed the procedure that the commencement of the retrial period and the statutory grounds for exclusion must be considered together. Then, if the trial on which the final judgment was based was also defective, what are the conditions under which relief is blocked? When the defect revealed only after the final and conclusive judgment lies in the preceding trial, this is where the opening and closing of the route by which that defect may be contested are distinguished. Here, the underlying trial means the preceding trial supporting the final judgment, and the defect refers to a flaw arising in the course of that trial.
Article 452 of the Civil Procedure Act frames the text on this question as follows. "Article 452 (Grounds for Retrial of the Trial Serving as the Basis) Where a ground provided in Article 451 exists in a trial on which the judgment is based, that ground may be taken as a reason for retrial even if there is an independent method of appeal against that trial." (Article 452 of the Civil Procedure Act) The subject designated by this text is the party who received the final and conclusive judgment; the act is taking it as a reason for retrial of the trial serving as the basis of that judgment; and the condition is that a ground provided in Article 451 exists in that underlying trial. This provision addresses only this single text and does not determine the requirements of other grounds for retrial.
Article 452 states that, when a statutory ground exists in the underlying trial, that ground may become a reason for retrial, while at the same time stipulating that it is not excluded even if an independent method of appeal exists against that trial. The reason these two aspects must be viewed separately is that the former concerns the conditions for the constitution of grounds for retrial, while the latter limits the scope of operation of the contrary circumstance that excludes that ground from the reasons. By this distinction, removing the defect of the underlying trial from the grounds for retrial on the sole basis that an independent method of appeal exists is not permitted by the text. Conversely, if the statutory ground itself is absent, the route is not open in the first place.
Nevertheless, if the controversy is broadened to the underlying trial, the matters to be contested within that scope increase and the lawsuit becomes complicated, and the loss that for grave misjudgments outside the enumerated grounds no path of relief ultimately remains cannot be erased. Yet, for reasons of such inconvenience and remedial gap, the grounds for retrial of the underlying trial cannot be excluded merely because an independent method of appeal exists. This route of relief closes where any one of the statutory requirements is not met, as where there is no statutory ground, or the bar on raising matters not asserted on appeal or the time limit applies and no exception thereto exists, and only a bare new complaint remains. The gap left by the text is not covered over with the cost of complexity.
If this fact is compared with the preceding conditions, whether the statutory ground is established remains undetermined. For example, if that new document is material supporting the defect of the underlying trial and falls within a ground provided in Article 451, then under Article 452 it is not excluded from the reasons merely because an independent method of appeal existed. However, at present, when it is not explained which statutory ground that document falls under, it cannot be asserted that the route is open, nor can it conversely be asserted that it is definitively blocked.
The conclusion permitted by this section is that a defect in an underlying trial for which a statutory ground exists cannot be barred from becoming a reason for retrial merely by the existence of an independent method of appeal; the conclusion not permitted is to regard the route of relief as unconditionally open merely by the existence of such a defect. The absence of a statutory ground, the satisfaction of the bar on raising matters not asserted on appeal and of the time limit and the nonexistence of an exception thereto, and the residue of an unexplained bare new complaint are each conditions that close this route. It is also made clear together that the fact that a legal route is open does not mean that the results of actual payment or delivery, or recovery, have already been achieved.
5.3The Boundary That Remains When There Is No Data
On the premise that the commencement of the retrial period and the statutory grounds for exclusion must be considered together, if the preceding trial that supported the final and conclusive judgment was also problematic, one must examine what position that problem occupies in the present retrial determination. The question here is not simply whether one is pleased with the final judgment, but whether, even where a statutory ground exists in the trial itself lying at the foundation of that judgment, it may serve as a reason for retrial. Now, centering on this narrow question, the discussion also examines where the points that cannot be determined for want of material lie.
The statutory text on this question is written thus in Article 452 of the Civil Procedure Act. "Article 452 (Grounds for Retrial of the Trial Serving as the Basis) Where a ground provided in Article 451 exists in a trial on which the judgment is based, that ground may be taken as a reason for retrial even if there is an independent method of appeal against that trial." The subject fixed by this text is the person seeking retrial against the final and conclusive judgment, and the act serving as the object is the defect that occurred in the preceding trial supporting that final judgment. The condition is that a ground provided in Article 451 must exist in the preceding trial, and the circumstance that an independent method of appeal lay separately open against that preceding trial is not excluded from the condition. The requirements of other provisions are not addressed here.
The connection linking this text with the conclusion of this section is clear. If a statutory ground exists in the preceding trial, it is not excluded from the grounds for retrial merely because an independent method of appeal existed against that trial. Here, two stages must be kept distinct. One is the determination whether a statutory ground exists in the preceding trial; the other is the stage of confirming whether material supporting that the ground has been confirmed is at hand. At the second stage, where the time the ground was learned of or the preceding finality requirements related to a crime cannot be confirmed, matters as to which the materials for determination are not specified are left as undetermined rather than asserted to be impossible. That is, the state of not knowing whether the ground exists is not exchanged for the conclusion that the ground does not exist.
The point most largely targeted by the counterargument that the dispute becomes complicated when the underlying trial is thus drawn into the determination is the procedural burden. In a case where contesting the final judgment alone would suffice, if the records and grounds of the preceding trial are also examined, the quantity of material that must be laid out and to what extent snowballs, the opposing party must respond to an unanticipated front, and the scope of the dispute may widen beyond control. That inconvenience should not be treated lightly. The circumstance that matters become complicated is left as a question of organizing the material and of the scope of determination, but cannot serve as a reason for obscuring the existence of the statutory ground.
In the synthetic scene, Plaintiff A obtained a new document after the final and conclusive judgment, but cannot yet explain which ground for civil retrial that document falls under. Whether this document concerns the underlying trial supporting the final judgment, which of the grounds provided in Article 451 it touches upon, and when the ground was learned of are not determined in this scene. Accordingly, in line with the distinction stated above, this matter, as to which the materials for determination are not specified, remains undetermined rather than impossible. Only, years or amounts, or the result of the judgment, lying outside the scene cannot be determined in this section, and the outcome of the win or loss in an actual case, or the results of performance, also remains undecided together. Not converting the fact that there is no material into the meaning that there is no relief is the maintenance of this boundary.
The conclusion permitted by this section is limited to the following: if a statutory ground exists in the underlying trial, it is not excluded from the grounds for retrial merely because an independent method of appeal exists; and matters that cannot be determined for want of material remain undetermined, distinguished from impossibility. The conclusion not permitted here is the premature judgment that a dispute necessarily becomes complicated when the preceding trial is dealt with, or that some ground for retrial is confirmed straightaway on the strength of the newly obtained document alone. Maintaining this distinction—leaving the unconfirmed unconfirmed, and determining the confirmed statutory ground as a statutory ground—is preserved.
5.4The Records Needed for Determination
What if the trial on which the final judgment was based was also defective? Where the time the ground was learned of or the preceding finality requirements related to a crime cannot be confirmed, the determination is left as undetermined, and this is distinguished from cases where relief is blocked. Accordingly, the new document by itself does not reveal what should be taken as the basis.
Article 452 of the Civil Procedure Act provides: "Where a ground provided in Article 451 exists in a trial on which the judgment is based, that ground may be taken as a reason for retrial even if there is an independent method of appeal against that trial." Here, "the underlying trial" means the preceding trial supporting the final judgment. This text says that, under the condition that a ground provided in Article 451 exists in that preceding trial, that ground is not removed from the reasons for retrial merely because a route for separately contesting that trial is already open. Whether a ground exists and whether a route for separate contestation exists are two different questions.
What links this text with the conclusion of this section is precisely that distinction. If the existence of a route for separate contestation intrudes into the determination asking whether grounds for retrial exist, the defect of the preceding trial forming the basis of the final judgment falls out of the subject of examination. Conversely, if the existence of that route is left as a separate matter, one can begin by confirming whether a statutory ground exists in the preceding trial. Yet to actually carry out that confirmation, preceding materials such as the final and conclusive judgment, the occurrence and awareness of the ground, the course of the appeal, and the criminal finality must support it. This determination is founded on such records, and if those records are absent, the conclusion remains undetermined.
Nevertheless, the counterargument remains that if the inquiry is broadened to the underlying trial, the dispute becomes complicated. If one looks not only at one final and conclusive judgment but also at the preceding trial before it, the breadth of examination widens, and because matters that had a route for separate contestation are taken up again, the burdens of both attack and defense increase. Room also arises for the same circumstance to be dealt with along both routes. Yet even if this disadvantage is urged, the grounds for retrial of the underlying trial cannot be excluded merely because an independent method of appeal exists. What becomes complicated is the course of the examination, and what cannot be excluded means that the door to the examination cannot be closed. If these two are read as overlapping in one, the costs pointed out by the counterargument and the door left by the statutory text appear to stand opposed to each other.
What is confirmed in the synthetic scene is only the fact that Plaintiff A obtained a new document after the final and conclusive judgment, and the state that it cannot yet be explained which ground for civil retrial that document falls under. Comparing this fact with the preceding conditions, it cannot be asserted that a statutory ground exists in the preceding trial merely from the circumstance that the new document was obtained. At the same time, to determine whether a statutory ground exists in the underlying trial and whether that ground may serve as a reason for retrial, preceding materials such as the final and conclusive judgment, the occurrence and awareness of the ground, the course of the appeal, and the criminal finality must be gathered. Since no year or amount or commencement date is fixed in the scene, and the facts of an actual case are not included, matters such as the results of recovery or performance cannot be determined from this scene and remain undetermined.
Accordingly, the conclusion permitted by this section is that, when determining whether a statutory ground exists in the preceding trial on which the final judgment was based, the circumstance that a route for separate contestation existed does not push that ground out of the door of the examination, and that this determination is founded on the records of the preceding materials enumerated above. Conversely, the conclusions not permitted are to regard grounds for retrial as established merely from the fact that a new document was obtained, and to regard relief as immediately blocked merely because the records have not yet been gathered. The state of having no records is a state in which the determination remains undetermined; it is not a declaration of impossibility of relief.
5.5Circumstances That Change the Decision
That conclusion means that the threshold for computing the period has been crossed; it does not mean that the defects of the underlying judgment have already been examined. If the new document concerns the judgment that formed the basis of the final judgment, through what procedure should it be handled? Here, the underlying judgment means the prior judgment supporting the final judgment.
Article 452 of the Civil Procedure Act lays down language that answers that question. The statute provides: "Where any of the grounds specified in Article 451 exists in an adjudication which forms the basis of the judgment, such ground may constitute a ground for retrial even if there is an independent means of appeal against that adjudication." In this language, the subject is the person seeking to claim retrial, the act is asserting a defect in the underlying judgment as a ground for retrial, and the condition is that the defect falls under any of the grounds specified in Article 451. Whether there is an independent means of appeal does not operate as a requirement for exclusion in this language. What this Article addresses is whether a defect in the underlying judgment may be taken as a ground for retrial; separate issues under other Articles are not explained here.
Connecting that language with the conclusion of this section reveals that the two stages of adjudication are different thresholds. The first stage is whether a defect in the underlying judgment may be taken as a ground for retrial, and the second stage is whether the result of the original judgment remains justifiable as it stands. Article 452 of the Civil Procedure Act sets only the threshold of the first stage, and does not erase the ground itself on the ground that an independent means of appeal exists. Even where a defect is confirmed, if the result of the original judgment is found justifiable, it is changed to a dismissal of the claim rather than a grant of retrial. Conversely, if the specified change is confirmed, the existing determination on blocking and cessation is discarded and the stage is adjudicated anew from the beginning. If the two stages are compressed into one, recognition of the ground reads as though it led immediately to reversal of the result.
The inconvenience that attends widening that distinction is real. If the final judgment and the prior judgment on which it is based are handled together, the issues in dispute increase, the scope of examination widens, and the anxiety of the counterparty, who expected the stability of the final and conclusive judgment, grows. However, the concern that a remedial gap remains for serious misjudgments outside the enumerated grounds is a separate matter from this inconvenience. This answer does not erase the loss that matters become more complex. It is only considered that such a loss does not become a basis for exclusion.
What can be confirmed in the synthetic scene is limited. Plaintiff A obtained a new document after the final and conclusive judgment, and cannot yet explain either whether that document concerns the underlying judgment or which ground for civil retrial it falls under. This fact alone cannot determine whether the conditions of Article 452 are met. Likewise, it cannot be determined whether the result of the original judgment is justifiable, or whether the specified change has been confirmed so that the existing determination on blocking and cessation must be discarded. Prior materials are needed, such as the final and conclusive judgment, the occurrence and awareness of the ground, the course of appeal, and criminal finality, but the scene has not fixed the collection of such materials or their content. The circumstance that items remain undetermined does not change the narrow conclusion of this section.
What this section permits is this: whether a defect in the underlying judgment may be taken as a ground for retrial and whether the result of the original judgment is justifiable are adjudicated separately, and even where the ground is confirmed, if the result is justifiable, it is changed to a dismissal of the claim. What it does not permit is excluding a ground for retrial merely because an independent means of appeal exists, and reading recognition of the ground as immediate reversal of the result. The adjudication up to this point is confined to the established conditional distinction and does not supplement the undetermined items of the scene.
5.6The Strongest Counterargument and the Answer
It accepts the premise that even where grounds for retrial exist, if the result of the original judgment is found justifiable, it is changed to a dismissal of the claim rather than a grant of retrial. The question that remains, therefore, is whether, when a defect also appears in the prior judgment supporting the final judgment, that defect may be taken as a ground for retrial. Whether the fact that an independent means of appeal is provided for that prior judgment blocks the answer to this question becomes the central issue.
The relevant language is found in Article 452 of the Civil Procedure Act. The subject spoken of here is a party to the final and conclusive final judgment, and the act is asserting, in a claim for retrial of that judgment, the ground arising from the prior judgment as a ground for retrial.
The condition set by this language is that a statutory ground exists in the prior judgment. Once that condition is met, the presence or absence of an independent means of appeal does not bar the qualification of the ground for retrial. This is why the two stages must be viewed separately. The adjudication examining whether a ground under Article 451 exists in the prior judgment and the adjudication examining whether a separate route of appeal is open against that prior judgment are different things, and the latter circumstance alone cannot substitute for the former adjudication.
The counterargument that extending the scope to the underlying judgment complicates the dispute targets a practical inconvenience. In a dispute over one final and conclusive judgment, if defects in the prior judgment are examined together as well, the issues increase, the examination lengthens, and the legislative choice already to provide a separate means of appeal is also disturbed. Even without denying that inconvenience, grounds for retrial of the underlying judgment cannot be excluded merely because an independent means of appeal exists. The procedural trouble pointed to by the counterargument and the blocking of statutory grounds from being grounds for retrial are separate matters.
This fact alone cannot establish either that a statutory ground exists in the prior judgment or that there was an independent means of appeal against that judgment. Accordingly, nothing is confirmed in this scene. What remains is only the point that the possibility stays open for the document to be connected to the ground of the prior judgment in the future, and the standard of adjudication that, at the point when that connection is explained, the existence of an independent means of appeal does not erase that ground.
The conclusion of this section is narrow. Where a statutory ground exists in a judgment which forms the basis of a judgment, it is not permitted to remove that ground from the grounds for retrial on the sole fact that there was an independent means of appeal. Conversely, the boundary is equally maintained that if no statutory ground has been confirmed and only a new complaint remains, it cannot be taken as a ground for retrial.
5.7The Link to the Application and the Dispositive Part
Even if the final and conclusive judgment itself shows no conspicuous blemish, an error may be hidden in the earlier determination that led to that judgment. In the preceding section, the premise was accepted that grounds for retrial of the underlying judgment cannot be excluded merely because an independent means of appeal exists. On the basis of this premise, it is examined what follows if there is also a defect in the judgment that formed the basis of the final judgment. In this scene, the place of the defect indicated by the new document must first be identified.
This language takes as its object the underlying judgment, that is, the prior judgment supporting the final judgment. The act is taking it as a ground for retrial when there are grounds specified in Article 451 in that prior judgment, and the condition is that such grounds exist. The language makes clear that it does not exclude the grounds even if there is an independent means of appeal against that judgment. Whether other requirements are present is not determined by this Article.
This language and the foregoing conclusion interlock in the same direction. Whether statutory grounds exist in the underlying judgment, and whether there is a separate way to appeal that underlying judgment, are different stages of adjudication. The former concerns the presence or absence of grounds that may be taken as a ground for retrial; the latter is a matter of distinguishing whether those grounds can be dealt with in the retrial procedure. Because the Article does not erase the former adjudication on the basis of the latter circumstance, grounds for retrial cannot be excluded merely by the existence of an independent means of appeal. If the judgment on the existence of grounds and the judgment on exclusion are not separated, the passage opened by this Article is closed.
The counterargument may be raised that widening the scope of dispute to the underlying judgment in this way complicates the dispute. If, to an examination that was thought to need to deal only with the defect of the final judgment, the adjudication of the grounds of the earlier prior judgment is added, the work of organizing which ground of which judgment is being disputed increases. Hence also follows the inconvenience that the same debate is repeated in the retrial procedure even in cases for which an independent means of appeal has been provided. That the burden of a widening dispute must be borne is not erased. Inconvenience alone does not close the place of the grounds that has been left open.
The fact alone that Plaintiff A obtained a new document after the final and conclusive judgment does not determine which ground it falls under. It is not clear whether the new document indicates a defect in the final judgment itself, or a defect in the prior judgment supporting that judgment. In the former case, the presence or absence of grounds for retrial against the final judgment must be examined; in the latter case, whether statutory grounds exist in the underlying judgment must be examined. What is settled now is only the standard of adjudication that where statutory grounds exist in the underlying judgment, they are not excluded merely by the existence of an independent means of appeal. Which side the new document falls on cannot be determined from this scene alone and therefore remains undetermined.
The conclusion of this section goes as far as that where statutory grounds exist in the underlying judgment, the existence of an independent means of appeal does not prevent their being taken as a ground for retrial. Whether another independent means of appeal was actually used, and what its result was, is not determined by this section. Whether a grant of retrial follows from the mere existence of grounds for retrial is also left outside the scope of this section. Conversely, this conclusion does not permit excluding grounds for retrial of the underlying judgment merely because an independent means of appeal exists.
5.8The Scope This Section Undertakes
On the premise of such an adjudication procedure, if one looks only at the last judgment, the defect supporting its conclusion may not be visible. In such a situation, the question is what follows if there is also a defect in the judgment that formed the basis of the final judgment—that is, whether the defect of the prior judgment supporting the final and conclusive judgment may be taken as a ground for retrial.
The language answering this question is in Article 452 of the Civil Procedure Act. Here the subject is the person claiming retrial against the final and conclusive final judgment, and the act is asserting a defect arising in the prior judgment as a ground for retrial of the final judgment. The conditions are that the prior judgment is a judgment forming the basis of the final judgment, and that there are grounds specified in Article 451 in that judgment.
The reason these conditions must be viewed separately lies in the position of the concept of the underlying judgment. The underlying judgment means the prior judgment supporting the final judgment, and it points to the case where the defect arose not in the final judgment itself but in the judgment beneath it. It is precisely in such a case that the Article provides that where the prior judgment has statutory grounds, the mere fact that there is an independent means of appeal does not exclude their being taken as a ground for retrial. An independent means of appeal means a passage through which the prior judgment can be separately disputed, and the Article does not treat the existence of that passage itself as a ground for exclusion.
One may think of the criticism that, if the scope of dispute is widened to the underlying judgment, that scope becomes complex. If only the final judgment is made the object, the examination is limited, but if defects in the prior judgment are looked into as well, the branches of dispute between the parties increase, the procedure is delayed, and the stability of the judgment may be shaken. Even without denying such inconvenience, the author maintains the answer that grounds for retrial of the underlying judgment cannot be excluded merely because an independent means of appeal exists. Because the language of the Article provides not exclusion but permission, an exclusion requirement cannot be created merely from the circumstance that matters become more complex.
What can be confirmed in this scene is the fact that a document was obtained and the point that the legal character of that document has not yet been determined. What Article 452 requires is that there are grounds specified in Article 451 in the judgment forming the basis of the final judgment, but whether the new document obtained after the final and conclusive judgment is connected with the defect of the prior judgment, which prior judgment is the underlying judgment, and which ground under Article 451 the document falls under cannot be determined from the scene alone. Therefore, they remain undetermined for the present.
The conclusion this section permits is the distinction that where statutory grounds exist in the judgment forming the basis of the final judgment, those grounds cannot be excluded from the grounds for retrial merely by the existence of an independent means of appeal. That conclusion, however, is conditioned on there being grounds specified in Article 451 in the underlying judgment, and does not extend so far as to include complaints that one simply dislikes the prior judgment. Moreover, the existence of grounds for retrial and the grant of retrial are separate stages, and the condition that even where grounds for retrial exist, if the result of the original judgment is found justifiable, it is changed to a dismissal of the claim rather than a grant of retrial sets that boundary.
5.9Application of the Text of the Provisions and the Holdings of Precedents
In a retrial of a final and conclusive civil judgment, how are defects of the underlying judgment taken as a basis for adjudication? This question asks about the scope within which grounds for retrial are established and the limits of the grounds used in that adjudication.
Article 452 of the Civil Procedure Act provides: "Where there exists any of the grounds specified in Article 451 against a judgment which forms the basis of a judgment, such ground may constitute a ground for retrial even if there is an independent means of appeal against that judgment." Here the object is the prior judgment supporting the final judgment, that is, the underlying judgment. The language points to the case where statutory grounds exist in the underlying judgment and those grounds are taken as a ground for retrial, and does not make the presence or absence of an independent means of appeal a requirement for exclusion.
The range in which this language is used as a basis for adjudication of a retrial of a final and conclusive civil judgment is bound by the language of Article 452. A distinction must be drawn between the adjudication that the grounds may be taken as a ground for retrial and the stage of determining which judgment those grounds actually attach to. The former is established where statutory grounds exist in the prior judgment, and the latter is limited by the relationship of being the prior judgment that formed the basis of the final judgment. It is not extended to other parts of the reasons for judgment or to other paragraphs.
Shifting the view from the flow of reasoning of the final judgment back to the prior judgment increases the scope of examination and the issues in dispute. The circumstance that matters become more complex cannot create a requirement for exclusion that the language does not lay down, and does not close the path for dealing with defects in the prior judgment that had been hidden from view behind the final judgment.
What the language requires in the adjudication of a retrial of a final and conclusive civil judgment is that statutory grounds exist in the underlying judgment, and the mere fact that a new document was obtained does not satisfy that requirement. This scene, in which it cannot be confirmed whether the document falls under statutory grounds with respect to the prior judgment, remains undetermined.
In a retrial of a final and conclusive civil judgment, the conclusion this language permits is that where statutory grounds exist in the underlying judgment, those grounds may be taken as a ground for retrial, and the circumstance that an independent means of appeal exists alone cannot block the application of that language. However, this language does not permit drawing in grounds that fall outside the scope of the underlying judgment or that belong to other paragraphs. This adjudication, which fixes the scope within which grounds for retrial are established, is a question separate from whether those grounds lead to a grant of retrial.
5.10Fine Distinctions Within the Stage
바로 그 지점에서 이번 분석 단계는 최종 판결의 기초가 된 재판에까지 눈을 돌려, 그 선행 재판에 하자가 있는 경우를 따로 판정한다. 확정민사판결을 떠받치는 재심 절차 안에서 무엇을 다시 나누어 살펴보아야 하는지가 여기서의 물음이며, 앞 절이 다룬 기간과 예외의 확인은 이미 끝난 것으로 받아둔다.
이 물음에 답할 원문은 민사소송법 제452조에 놓여 있다. 그 문언은 "제452조(기본이 되는 재판의 재심사유) 판결의 기본이 되는 재판에 제451조에 정한 사유가 있을 때에는 그 재판에 대하여 독립된 불복방법이 있는 경우라도 그 사유를 재심의 이유로 삼을 수 있다."라고 정한다. 여기서 주체는 최종 판결을 떠받치는 선행 재판이며, 그 선행 재판에 제451조에 정한 사유가 있을 것을 조건으로 삼는다. 그렇다면 이 조문이 가리키는 행위는, 선행 재판 자체를 별도로 다툴 수단이 이미 마련되어 있더라도 그 사유를 최종 판결의 재심이유로 채택하는 일이다. 이 절에서 해당 범위는 제452조이며, 그 밖의 조문이 정하는 다른 쟁점은 여기서 다루지 않는다.
그 문언을 앞의 결론과 잇는다. 이 조문은 두 구별을 요구한다. 하나는 선행 재판에 사유가 있는지의 판단이고, 다른 하나는 그 사유가 최종 판결의 재심이유로 채택될 수 있는지의 판단이다. 독립된 불복방법의 존재는 어느 한쪽의 판단 기준으로 작동하지 않는다. 세부 구분은 작동하는 경우와 막히는 경우와 미확정인 경우의 조건에 한정한다. 재심의 문이 열리는 경우는 법정 재심사유, 선행 확정 요건, 기간 또는 그 예외를 충족하고 원판결 결과의 정당성까지 다시 심리할 수 있는 경우이다.
이런 구별을 유지하면, 열어둔 다툼이 한층 복잡해지는 불편은 분명해진다. 기초가 되는 재판까지 재심이유의 후보로 끌어들이면, 최종 판결 밖의 재판 하나하나를 들여다보아야 하므로 다툼의 지점이 늘어난다. 나아가 제451조에 정한 사유의 테두리 밖에서 중대한 오판이 있었다고 느끼는 경우를 생각하면, 열거된 사유 밖이라서 구제 공백이 남는 듯한 인상을 지울 수 없다. 그 사유가 선행 재판에 실제로 해당하는지를 살피는 일과, 기초 재판을 다룬다는 이유로 다툼이 복잡해지는 불편을 감수하는 일은 별개의 문제이다.
합성 장면에서 주어진 사실은 하나이다. 이 상황을 명시한 조건에 대조하면, 원고 A의 새 문서가 최종 판결 자체에 대한 사유인지, 아니면 그 최종 판결을 떠받치는 선행 재판에 대한 사유인지도 아직 정해지지 않았다. 법정 사유가 없거나 상소 미주장 제한, 기간 제한에 걸리고 해당 예외도 없으며 단순한 새 불만만 남은 경우에 이르는지도 자료만으로는 판단할 수 없다. 미확정인 경우의 조건, 곧 사유를 안 때나 범죄 관련 선행 확정 조건을 확인할 수 없는 경우가 해당하는지 역시 마찬가지이며, 이 점은 미확정으로 남는다.
따라서 이번 단계가 허용하는 결론은, 기초가 되는 재판에 법정 사유가 있을 때 독립된 불복방법의 존재만으로 그 사유를 재심이유에서 밀어내지 않는다는 것에 머문다. 반대로 여기에서 허용되지 않는 결론은, 선행 재판을 다루는 자리만으로 재심사유가 자동으로 인정된다는 것이나, 앞서 기간과 예외의 판정을 건너뛰고 곧바로 기초 재판의 하자로 넘어가는 것이다.
5.11Synthesis of Effectiveness, Blockage, and Undetermination
앞 절에서 밝힌 기본 재판은 최종 판결을 떠받치는 선행 재판을 뜻한다. 이 장면에서 재심은 작동하는가, 막히는가, 아니면 아직 판단할 수 없는 상태인가.
이 물음에 답하는 문언은 민사소송법 제452조다. 그 문언은 "판결의 기본이 되는 재판에 제451조에 정한 사유가 있을 때에는 그 재판에 대하여 독립된 불복방법이 있는 경우라도 그 사유를 재심의 이유로 삼을 수 있다"고 정한다(민사소송법 제452조). 여기서 주체는 확정 판결에 불복하여 재심을 청구하는 사람이고, 행위는 그 판결을 떠받치는 선행 재판의 하자를 재심의 이유로 내세우는 일이다.
이 문언은 기본 재판에 법정 사유가 있다면 그 재판 자체에 독립된 불복방법이 있어도 재심이유를 막지 않는다. 따라서 이 절의 결론을 세 가지 상태로 나누면, 법정 재심사유·선행 확정 요건·기간 또는 그 예외를 충족하고 원판결 결과의 정당성까지 다시 심리할 수 있는 경우에는 작동한다. 법정 사유가 없거나 상소 미주장 제한·기간 제한에 걸리고 해당 예외도 없으며 단순한 새 불만만 남은 경우에는 막히고, 사유를 안 때나 범죄 관련 선행 확정 조건을 확인할 수 없는 경우에는 미확정으로 남는다.
기초 재판까지 넓히면 다툼이 복잡해진다는 반론은, 앞선 절차에서 다툴 기회가 있었던 사안까지 재심이 파고들면 확정 판결의 종국성이 흔들리고 당사자에게 반복 소송의 불편이 남는다는 손실을 겨냥한다. 앞 절의 전제에 따르면 판결의 기본이 되는 재판에 법정 사유가 있으면 독립 불복방법의 존재만으로 재심이유에서 제외되지 않으므로, 복잡해진다는 사정만으로 그 배제를 정당화할 수 없다.
합성 장면에서 원고 A가 얻은 새 문서는 어떤 민사재심사유에 해당하는지 설명되지 않았다. 확정판결·사유 발생과 인지·상소 경과·형사 확정 등 선행 자료도 확인되지 않았으므로, 법정 재심사유의 충족 여부나 기산일을 계산할 수 없다. 다만 재심사유가 있어도 원판결 결과가 정당하다고 인정되면 재심 인용이 아닌 청구 기각으로 바꾼다는 대조 조건은 명확하다. 사유의 귀속이 확인되지 않는 한 이 장면으로 작동이나 차단을 확정할 수 없다.
이 절이 허용하는 것은 기본 재판의 법정 사유를 독립 불복방법의 존재만으로 재심이유에서 밀어내지 않는 판단이며, 허용하지 않는 것은 기초 재판의 모든 하자를 새 불만과 함께 받아들이는 일반론이다. 사유를 안 시점과 범죄 관련 선행 확정이 확인되지 않은 상태에서 어떤 결론을 단정하는 것도 이 절의 범위 밖이다.
5.12Conclusion Carried Over to the Next Section
재심 기간의 기산과 법정 제외 사유를 함께 보아야 한다는 전제를 그대로 둔 채, 이제 선행 재판의 하자를 어떤 자리에서 다투는지가 남는다. 이 장면에서 마지막 판결 자체의 결함이 아니라 그 결론을 떠받친 선행 재판의 결함을 어떻게 다룰지가 물음으로 열린다.
이 물음에 답하는 문언은 민사소송법 제452조에 있다. 그 조문은 “판결의 기본이 되는 재판에 제451조에 정한 사유가 있을 때에는 그 재판에 대하여 독립된 불복방법이 있는 경우라도 그 사유를 재심의 이유로 삼을 수 있다”고 정한다. 여기서 주체는 확정된 최종 판결에 대해 재심을 청구하려는 사람이고, 대상이 되는 행위는 최종 판결을 떠받친 선행 재판에 법정 사유가 있다는 주장이다. 조건은 판결의 기본이 되는 재판에 제451조에서 정한 사유가 있어야 한다는 것이며, 그 재판에 대하여 독립된 불복방법이 있는 경우라도 그 사유를 재심의 이유로 삼을 수 있다.
문언은 이 경우를 막지 않는다고만 정할 뿐이며, 재심을 인용하겠다는 뜻까지 정하지 않는다. 이 둘을 구별해야 하는 이유가 여기에 있다. 기본 재판은 최종 판결을 떠받치는 선행 재판을 뜻하는데, 이 정의는 선행 재판을 따로 다투는 통로가 열려 있었는지와는 무관하다. 선행 재판에 법정 사유가 있으면 독립 불복방법의 존재만으로 재심이유에서 제외되지 않는다(민사소송법 제452조). 그러나 사유 인정은 재심의 문턱을 넘기는 판단이고, 원판결을 뒤집는지는 그 결과의 정당성을 다시 심리한 뒤 판단할 별개의 단계다.
이렇게 넓게 열어 두면 다툼이 복잡해진다는 반론이 가장 날카롭다. 기본 재판 하나의 하자를 따지면서 그 재판 자체에 대한 불복 절차의 경과까지 함께 다루어야 하고, 같은 사정을 두고 두 통로가 겹쳐져 심리가 늘어난다는 불편이 따른다. 열거된 사유 밖의 중대한 오판에는 구제 공백이 남는다는 비난도 함께 겨눈다. 그래도 답은 흔들리지 않는다. 사유가 있음에도 그 자리에서 닫아버리면 반론이 지적한 불편과 구제 공백이 그대로 남는다.
이 장면에서 확인할 수 있는 것은 새 문서를 얻었다는 사실뿐이며, 그 문서가 선행 재판에 대한 제451조의 사유에 해당한다는 설명은 없다. 따라서 선행 재판의 하자를 이 절의 범위 안에서 확정할 수 없고, 문언이 정한 조건 충족 여부는 미확정으로 남는다. 다만 확인된 문언은 그대로다.
정리하면, 선행 재판에 법정 사유가 있고 그 재판에 독립된 불복방법이 있었다는 사정만으로는 재심의 길을 닫을 수 없다. 반대로 사유가 인정되었다는 사실만으로 원판결이 자동으로 뒤집힌다는 뜻도 아니다. 두 판단이 서로 다른 단계에 놓여 있다는 구별을 지키는 한 앞의 결론이 성립하고, 이 구별을 지우면 확인된 문언과 맞지 않는 답이 나온다. 앞 절에서 넘어온 기간과 제외 사유의 전제는 그대로 두고, 사유 인정 뒤에 무엇이 남는지만 다음으로 넘긴다. 재심사유가 인정되면 원판결은 반드시 뒤집히는가?